Commonwealth v. Valentine Underwood.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-230

COMMONWEALTH

vs.

VALENTINE UNDERWOOD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the denial of his motion for a

new trial. In May 2014, following a jury trial in the Superior

Court at which the defendant represented himself with the

assistance of standby counsel, the defendant was convicted of

kidnapping and aggravated rape. He appealed, and his

convictions were affirmed by a different panel of this court in

an unpublished memorandum and order. See Commonwealth v.

Underwood, 97 Mass. App. Ct. 1107 (2020). Thereafter, the

defendant filed a motion for a new trial, which is the subject

of this appeal. By that time, however, the trial judge had

retired, and the motion was denied without a hearing by another
Superior Court judge. For the reasons that follow, we affirm

the order denying the defendant's motion.

Discussion. 1. Jurisdiction. We first address the

Commonwealth's argument that we lack jurisdiction over this

appeal because the defendant failed to file a timely notice of

appeal. The Commonwealth is correct that the notice of appeal

was filed late. However, as the defendant notes in his reply

brief, our docket shows that a single justice of this court

extended the time for filing a notice of appeal. We discern no

basis for concluding that the extension was improper and,

therefore, we too deem the notice of appeal as timely filed.

See Mass. R. A. P. 14 (b), as appearing in 481 Mass. 1626

(2019).

2. Standard of review. "Under Mass. R. Crim. P. 30 (b), a

judge may grant a motion for a new trial any time it appears

that justice may not have been done. A motion for a new trial

is thus committed to the sound discretion of the judge."

Commonwealth v. Scott, 467 Mass. 336, 344 (2014).

Here, in denying the defendant's motion, the judge reasoned

that "[a]ll of the issues which [the defendant] purports to

raise in this motion are based upon the Pretrial and trial

record and either were or could have been raised on direct

appeal." We agree with the judge that the issues that were

raised and resolved in the defendant's direct appeal are barred

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by the doctrine of direct estoppel. However, with regard to the

defendant's remaining arguments, though waived, we review them

to determine whether an error was committed and if so, we ask

whether the error created a substantial risk of a miscarriage of

justice. See Commonwealth v. Randolph, 438 Mass. 290, 293

(2002) (all claims, waived or not, must be considered). Lastly,

we note that where, as here, the motion judge only considered

documentary evidence and did not hold an evidentiary hearing, we

may draw our own conclusions from the record. See Commonwealth

v. Howard, 81 Mass. App. Ct. 757, 760 (2012).

3. Direct estoppel. As noted above, some of the arguments

the defendant has raised in support of his motion for a new

trial were litigated and resolved in this court by the

defendant's direct appeal. Accordingly, the doctrine of direct

estoppel operates as a procedural bar to relitigating them. See

Commonwealth v. Rodriguez, 443 Mass. 707, 710-711 (2005). We

therefore do not address the defendant's arguments that (1) his

motion to dismiss should have been allowed, (2) he was denied

his right to an impartial jury when the judge refused to excuse

juror No. 75 for cause, (3) the judge erred by admitting in

evidence certain photographs and related testimony regarding the

defendant's appearance, and (4) the admission of evidence of

prior uncharged criminal conduct was unfairly prejudicial.

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4. Remaining claims. We now turn to the defendant's

remaining arguments. First, the defendant argues that he was

denied access to legal materials and the law library by various

Department of Correction (DOC) officials. The defendant made a

similar claim in a federal law suit he brought against DOC

officials. The defendant submitted pleadings and documents he

obtained during the litigation of the federal lawsuit to support

his claim in Superior Court. On review of those materials, we

discern no merit to this argument.

We acknowledge that "[t]he constitutional right of access

to the courts requires correctional officials 'to assist inmates

in the preparation and filing of meaningful legal papers by

providing prisoners with adequate law libraries or adequate

assistance from persons trained in the law.'" Cacicio v.

Secretary of Pub. Safety, 422 Mass. 764, 773 (1996), quoting

Harris v. Commissioner of Correction, 409 Mass. 472, 479 (1991).

At the same time, "[a]ny plan to give inmates access to the

courts need only provide access that is adequate, effective, and

meaningful when viewed as a whole." Cacicio, supra.

Furthermore, as the Supreme Judicial Court stated in Harris,

supra, "adequate legal assistance is an alternative means of

fulfilling the obligation to provide prisoners with access to

the courts." Here, there is no dispute that the defendant was

provided with standby counsel, and little dispute that he had

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the same access to the law library and legal materials provided

to any inmate in his position. As the Commonwealth notes in its

brief, according to the affidavit of Carol Lawton, deputy

superintendent of programs at the Massachusetts Correctional

Institution, Cedar Junction, the defendant was permitted to

retain one cubic foot of legal documents, access the law library

twice weekly, request books not in the prison collection, and

use a laptop with flash-drive capabilities so that materials

could be shared by and with standby counsel. Viewing these

circumstances together, we conclude that the defendant had

access to adequate legal assistance. To the extent the

defendant's affidavit submitted in support of his new trial

motion asserts otherwise, those assertions need not be credited.

See Commonwealth v. Furr, 454 Mass. 101, 109 (2009) ("Although

the judge did not make subsidiary findings explicitly refusing

to credit the [defendant's] affidavit, we may reasonably assume

from his denial of the defendant's motion that he did so").

Next, the defendant claims that on the fourth day of trial,

he was denied his anti-inflammatory medication and, as a result,

he experienced "withdrawals" and sleeplessness, which, in turn,

hindered his ability to defend himself and violated his right to

due process. Although the defendant reported to the judge that

he had not received his medication, was "jumpy," and had not

slept in two days, he did not ask for a continuance or state

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that he could not proceed. In fact, he informed the judge only

that he was "just letting the Court know so the Court don't

think I'm under the influence of something, something like

that." The defendant did not raise the issue again. 1

The defendant now contends that he never received his

medication, was unable to sleep for "three to four trial days,"

and suffered from "tremors, night sweats, loss of memory,

irritability, and loss of focus." However, our review of the

record shows that he was able to participate fully in the trial

by making objections and examining witnesses at the relevant

times, and was not, as he claims, unable to defend himself.

Thus, even if we were to assume the truth of the defendant's

subsequent assertions, which we do not, they do not provide a

basis for concluding that his right to due process was violated.

The defendant next raises a series of claims based on

various alleged errors by the trial judge. He claims that he

was precluded from (1) calling an alibi witness, (2) raising a

defense of third-party culpability, and (3) challenging the

chain of custody of deoxyribonucleic acid (DNA) evidence.

First, the alleged alibi witness, Rick Jay, was not on the

defendant's witness list and the defendant failed to subpoena

1 A prison official was present in court and confirmed that
the defendant had been offered a replacement medication but had
refused it, and further confirmed that the defendant's usual
medication would be provided that day.

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him or initiate an out-of-State process to secure his presence

at trial. Nonetheless, the judge made clear that he would

permit the witness to testify if the defendant could produce

him. When Jay declined to appear voluntarily, it was the

defendant's burden to procure his appearance. The defendant

cannot now complain of his own ineffectiveness in this regard.

Furthermore, although the defendant claims that Jay would

provide exculpatory testimony, he has not provided an affidavit

from him to support this assertion.

The defendant's claim that he was deprived of his right to

present a defense of third-party culpability fares no better.

At trial, the defendant pointed to two other men as potential

suspects and solicited testimony that both men matched the

victim's description of the assailant, and that at different

times during the investigation, both men were considered

suspects. The defendant appropriately (and effectively) relied

on this evidence to argue there was reasonable doubt as to his

guilt. Given these circumstances, we discern no support for the

defendant's claim that he was deprived of the ability to present

a third-party culprit defense.

The defendant's argument that he was precluded from

soliciting evidence regarding a gap in the chain of custody of

the DNA evidence also has no support in the record. The issue

stemmed from the handling of the rape kit and the victim's

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clothing from which the DNA evidence was extracted. The

specimens were obtained when the crimes occurred in 1988 and

were stored at the New Hampshire State laboratory (lab) until

they were sent to Cellmark Diagnostics for testing in 1996. At

that time, the results were not sufficiently discriminating

based on then-existing technology, and a comparison with the

defendant's DNA was inconclusive. However, one of the two

suspects discussed above was definitively excluded as a possible

perpetrator of the crimes. Then, in 2009, the evidence was

tested at the Massachusetts State Police crime lab. From the

sperm fraction, a full single-source DNA profile was created

that matched the defendant's profile. The so-called gap

occurred when the evidence was transported to Cellmark and back

to New Hampshire. The chain of custody form introduced at trial

did not specifically note that the evidence had been sent to

Cellmark and returned to New Hampshire.

There is no question that one goal of the defense was to

create reasonable doubt on the ground that the DNA evidence was

not reliable due to the age of the specimen and the alleged gap

in the chain of custody described above. However, contrary to

the defendant's assertion, he was permitted to exploit

deficiencies in the chain of custody and had the opportunity to

further question law enforcement officers about the lack of

documentation accompanying the transportation of the evidence.

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Moreover, to the extent that the defendant did not delve further

into the chain of custody issue, he did so prudently. As noted,

while the testing performed at Cellmark was favorable to the

defense in that a comparison of the specimen from the victim and

the defendant's DNA was inconclusive, the tests also excluded

one of the other suspects. By not inquiring further, the

defendant kept the proverbial door closed on this evidence, and

ultimately the fact that the DNA testing excluded one suspect

was not presented to the jury.

Lastly, the defendant argues that his appellate counsel

provided him with ineffective assistance by failing to raise the

issues we have discussed above. In light of our conclusion that

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none of the claimed errors created a substantial risk of a

miscarriage of justice, there is no merit to this claim.

Order denying motion for a
new trial affirmed.

By the Court (Vuono,
Englander & Hodgens, JJ. 2),

Clerk

Entered: January 13, 2025.

2 The panelists are listed in order of seniority.

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